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The United States Supreme Court recently agreed to review a case that involves the “cat’s paw” theory of liability, examining whether an employer can be found liable for unlawful discrimination when a biased supervisor does not make employment determinations but influences the decision-maker. (Staub v. Proctor Hospital, 560 F.3d 647 (7th Cir. 2009)).

Vincent Staub was employed as an angiography technologist at the Proctor Hospital of Peoria, Illinois (Proctor) and belonged to the Army Reserve, which required him to attend meetings one weekend a month and two weeks each summer. Staub contended that during his employment with Proctor, Janice Mulally, a supervisor in the hospital’s diagnostic imaging department, resented his military service and tried to get Staub’s military commander to waive the reservist’s two-week annual service obligation. Staub also alleged that Michael Korenchuk, head of the imaging department, made negative comments regarding Staub’s Army reserve sessions. Korenchuk characterized drill weekends as “a b[u]nch of smoking and joking and [a] waste of taxpayers’ money.”

In January 2004, Mulally issued Staub a written warning accusing him of shirking his duties after an incident in which Staub allegedly refused to help out in another imaging section even though he had no angiography patients waiting.

In April 2004, a co-worker complained to the human resource manager, Linda Buck, that Staub would “absent himself from the department” and he tended to be “abrupt.” A few weeks later, Buck discharged Staub after Korenchuk reported that Staub failed to heed an earlier warning instructing him to report to Korenchuk whenever he had no more work in the angiography department. Staub denied the accusation.

Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act (USERRA) after he was discharged, alleging that the reasons given by Proctor were just a pretext for discrimination based on his association with the military. The dispute centered on whether Buck, who made the ultimate decision to discharge Staub, was merely the “cat’s paw” of Staub’s direct supervisors, who had openly expressed an anti-military sentiment. Buck testified that she relied on Korenchuk’s input and also on past issues with Staub, but the ultimate decision was hers.

After a trial was conducted, the jury sided with Staub and awarded him $57,640 in damages, concluding that Staub’s military status was a “motivating factor” in his discharge, and that Proctor failed to prove that the employee would have been discharged regardless of his military status. The trial court denied Proctor’s renewed motion for judgment as a matter of law or for a new trial. Proctor appealed to the Seventh Circuit Court of Appeals.

On appeal, Proctor argued that the trial court gave a faulty instruction regarding the “cat’s paw” theory and improperly admitted evidence of bias by non-decision-makers. The Seventh Circuit agreed with Proctor and found that the “cat’s paw” theory did not apply to Staub’s termination because there was no evidence of “singular influence” by the alleged biased non-decision-maker on his termination and no proof that the decision-maker depended solely on the views of biased employees. The Seventh Circuit reversed the lower court judgment for Staub.

In a petition to the Supreme Court, Staub asked the Court to examine whether an employer can be held liable for the discriminatory acts of supervisors who do not make final employment decisions.

The Supreme Court could use the case to resolve the split among the circuit courts. The Court has twice agreed to take up cases alleging “cat’s paw” liability, but both cases were settled before oral argument was scheduled.

Regardless of whether the Supreme Court hears this case, it should alert employers that “cat’s paw” cases can lead to costly litigation. In order to avoid “cat’s paw” lawsuits, employers should make sure that ultimate decision-makers do not simply accept the recommendations of immediate supervisors and should independently investigate any incident or behavior that could lead to an adverse employment action. Additionally, it is always important to train all supervisors and employees on nondiscrimination policies and procedures.

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